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The Illinois Review Board has recommended a two-year suspension with restitution of an attorney in connection with his representation of a driver and passenger in an accident case. The misconduct is not for conflict of interest between the clients; rather, he was found to have converted medical payments by taking a contingency fee contrary to his agreement with the clients. He had deposited the payments into an account with a negative balance and used some proceeds for personal expenses.

The board rejected the claim that the conduct did not amount to conversion:

According to Respondent, his contracts with Kinnie and Harper
entitled him to one-third of all funds collected. According to his clients,
Respondent agreed that his fees would come only from the amounts recovered from
the person responsible for the accident. The Hearing Board determined that the
testimony of Kinnie and Harper was the more credible, and its findings must be
given great deference, as it was able to observe the witnesses’ demeanor and
judge their credibility. Additionally, as the Hearing Board noted, the
testimony of Respondent’s clients was supported by the contracts themselves, in
which Respondent crossed out and initialed the provision stating that Kinnie and
Harper agreed to pay him "a sum equal to 33 1/3% of the gross amount collected
for medical payment."

The Hearing Board’s findings that Respondent engaged in
conversion and failed to deliver funds to his clients to which they were
entitled were not against the manifest weight of the evidence. The fact that his
clients signed the settlement statement does not indicate in any way that they
agreed to a modification of their contracts, as Respondent contends. Harper
testified that at the time she endorsed the checks, she was not aware that it
was for payment of medical expenses. Kinnie did not question the division of
funds, as she trusted Respondent’s judgment and believed he would do it
correctly. The betrayal of that trust by converting his client’s funds tended to
defeat the administration of justice and bring the legal profession into
disrepute, in violation of Supreme Court Rule 770. Additionally, we conclude
that the Hearing Board’s determination that Respondent engaged in dishonest
conduct by taking fees from his clients’ payments for medical expenses, after he
had specifically given up that right in his contracts with both women was not
against the manifest weight of the evidence.

A restitution requirement was imposed:

Restitution is appropriate when there is an improper benefit
to the attorney. The facts show that Respondent took one-third of the payments from State
Farm for Kinnie and Harper’s medical expenses, after expressly eliminating any
right to do so from his contracts with both women. That money must be returned
to his clients in order to keep him from profiting from his unethical behavior.
Although Respondent told Kinnie that the remaining third of the funds would be
paid to the clinic, it was not.

The evidence showed that both women owed more to the clinic
than the $1,666.66 that the clinic theoretically was going to receive, and they
owed payment for services rendered by other medical providers, as well. It is
clear that the Hearing Board did not consider the testimony that the $1,000
Respondent gave Stafford for gambling purposes was payment of his clients’
medical expenses to be credible, and therefore, Respondent wrongfully retained
the final third of the State Farm checks as well. As there is no evidence of any
medical liens having been filed in this case, restitution should be paid to
Kinnie and Harper.

Where I come from, I'm proud to say, a lawyer gets disbarred for this type of misconduct. (Mike Frisch)